Orton v. City of Lincoln

• Decision Date: 13 June 1895
• Citation: 41 N.E. 159,156 Ill. 499
• Parties: ORTON et al. v. CITY OF LINCOLN.
• Court: Illinois Supreme Court

156 Ill. 499

41 N.E. 159

ORTON et al.

v.CITY OF LINCOLN.¹

Supreme Court of Illinois.

June 13, 1895.

Appeal from appellate court, Third district.

Action of debt by the city of Lincoln against John H. Starkey, Franklin C. Orton, and William N. Bock. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendants appeal. Reversed.

Beach & Hodnett and A. D. Cadwallader, for appellants.

E. C. Moos, for appellee.

PHILLIPS, J.

John H. Starkey was elected city clerk of the city of Lincoln, and made his bond on April 16, 1889, conditioned that he would faithfully discharge the duties of his office, and pay over all moneys that may come to his hands by virtue thereof, and render a just and true account when required by the city council, and would perform the duties required by virtue of his office, and according to the laws of the state and the ordinances of the city, etc. Appellants were sureties on said bond, which was given to cover a term of two years. On March 8, 1886, the city of Lincoln was incorporated under the general act for the incorporation of cities, approved 1872. Prior thereto it was incorporated, and the clerk was by ordinance authorized to collect certain licenses, fees, etc., not including money paid for dramshop license. By an ordinance approved April 5, 1885, it was provided: ‘The city council may in its discretion grant license for any period not exceeding one year and not less than three months to such person or persons as may apply therefor, upon such persons paying into the city treasury in advance a sum at the rate of five hundred dollars per year,’ etc. All ordinances or parts of ordinances in conflict therewith were repealed, and there is no provision authorizing the clerk to collect and receive money paid for dramshop license. The last-mentioned ordinance was in force when the bond was executed. Starkey succeeded himself as clerk for two years from April, 1891, and after the expiration of the latter term suit was brought on his bonds for each term. On the suit on the first bond a judgment was recovered in debt for the amount of the penalty of the bond, to be satisfied by damages assessed at $1,122.46.

The question of law arising on this record is whether the appellants, as sureties on his bond, are liable for his failure to account for money collected and received by him for dramshop licenses. The ordinance with reference to license of dramshops at the time of the execution of the bond did not authorize the clerk to collect and receive money paid for such licenses. That ordinance was in substance similar to section 3, c. 43, Rev. St. which provides: ‘It shall not be lawful for the corporate authorities of any city, town or village in this state to grant a license for the keeping of a dramshop except upon the payment in advance into the treasury of the city * * * such sum * * * not less than at the rate of five hundred dollars per annum.’ A surety is only to be held by the precise terms of his undertaking. His liability is strictissimi juris, and cannot be extended by construction, or...